Terms and Conditions of Sale

Terms and Conditions of Sale

The terms on which the liabilities to the Company of a Customer which is offered a trade credit facility by the Company are personally guaranteed by an individual are set out below.

The Customer's attention is drawn in particular to the provisions of clause 2.2, clause 4.3, clause 5 and clause 10 of these conditions in connection with the limitation of the Company’s liability to the Customer.

WARNING: No employee, worker, consultant, agent or other representative of the Company who is not a director of the Company has any authority to bind (whether by signature or otherwise) the Company to any terms for the purchase of goods and/or services other than these Conditions.

Interpretation

In these Conditions, the following definitions apply:

As New Condition: means that condition as would permit the relevant Goods or Sale or Return Stock (as the case may be) to be sold in the ordinary course of the Company’s business without rebate, discount or other allowance and without departure from the Company’s normal terms of business.

Business Day: a day (other than a Saturday, Sunday or public holiday in England and Wales) when banks in London are open for business.

Collection Location: has the meaning ascribed to it in clause 4.2.2.

Company: means Atom Supplies Limited, a company registered in England and Wales under company number 3193057 having its registered office at Unit 1, Ton Business Park, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA and the VAT registration number GB 662241553.

Conditions: means the terms and conditions set out on this page, as amended from time to time in accordance with clause 13.6.

Consignment Note: has the meaning ascribed to it in clause 4.2.1.

Contract: means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal or de facto power to direct or cause the direction of the general management of a company, and the expression Change of Control shall be construed accordingly.

Customer: means the person or firm who purchases the Goods from the Company.

Duty Inclusive Price: means the price for Goods which is inclusive of United Kingdom excise duty on alcoholic liquor.

Ex-Duty Price: means the price for Goods which is exclusive of United Kingdom excise duty on alcoholic liquor.

Force Majeure Event: means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors or change in law or regulation.

Goods: means the goods (or any part of them) set out in the Order.

In Good Standing: means that: (i) the relevant Customer has paid all invoices raised by the Company (not being invoices disputed in good faith) on or before the expiry of the credit terms set by the Company during the previous period of twelve months (including any truncated credit terms imposed pursuant to clause 9.4.10); and (ii) the relevant Customer’s credit account has not exceeded the credit limit set by the Company in respect of that Customer during the previous period of twelve months (including any reduced credit limit imposed by the Company pursuant to clause 9.4.11).

Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Liabilities: means liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).

Order: means the Customer's order for the Goods, as set out in the Customer's purchase order (or as amended with the written agreement of the Company).

Perishable Goods: means those Goods which are syrups, cordials or beers.

SAAD: means the simplified administrative accompanying document, the form which must accompany duty paid goods moving within the European Union (pursuant to Regulation (EEC) 3649/92).

Sale or Return Stock: has the meaning ascribed to it in clause 6.7.

Seasonal Goods: means Advent calendars, Christmas crackers and such other Goods as the Company determines (acting reasonably) are sold by the Company principally in connection with the celebration of Christmas (and Season shall be construed accordingly).

SOGA 1979: means the Sale of Goods Act 1979.

Spirits List: means the spirits list of drinks available to the Company’s customers and prospective customers which is maintained and updated by the Company from time to time.

Warranty Period: has the meaning ascribed to it in clause 5.1.

In these Conditions:

references to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality);

references to a party include that party’s personal representatives, successors or permitted assigns and references to the parties are to the Company and the Customer;

references to a statute or statutory provision are references to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

unless the context otherwise requires, references to a clause are references to a clause of these Conditions;

any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(save where the context requires otherwise) references to Delivery or Collection shall be to delivery, collection or, in the circumstances referred to in clauses 4.1.6 and 4.2.6, deemed completion of delivery (as the case may be); and

subject to clause 13.2, references to writing or written include e-mails (but not faxes).

Basis of Contract

These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

No employee of the Company (who is not also a director of the Company) has any authority (actual or otherwise) to negotiate any changes to these Conditions or to enter into any contract for the sale of Goods to the Customer on any terms and conditions other than these Conditions. No variations of or additions to or substitutions for these Conditions, even if included or referred to in the document or other communication on, in or by which an Order was placed, shall be binding on the Company unless specifically accepted by a director of the Company.

An Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the Order is complete and accurate.

The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence. Each Order (once accepted) shall constitute a separate Contract.

The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.

Any samples, drawings, descriptive matter, or advertising material produced by the Company and any illustrations contained in the Company's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. The Contract is not a sale by sample.

A quotation for the Goods given by the Company shall not constitute an offer. Prices set out in quotations are subject to change.

Goods

The Goods are described in the Spirits List. In the event of any conflict between the description of the Goods which is set out in the Spirits List and any description which is set out in the Company’s catalogues or brochures or which is communicated to the Customer (whether in writing or otherwise), the description which is set out in the Spirits List shall prevail.

The Company reserves the right to amend the specification, packaging and appearance of the Goods without notice to the Customer:

if required by any applicable statutory or regulatory requirements;

if the specification of the Goods is changed by the Company’s suppliers and the Company no longer has adequate stocks of Goods which pre-date the change in order to fulfil the Order; or

3.2.3 in circumstances where a Force Majeure event occurs.

The Company reserves the right to discontinue any Product without notice to the Customer.

Delivery or Collection

If the parties agree that the Company is to arrange for the delivery of the Goods to the Customer:

the Company shall ensure that each consignment of the Goods is accompanied by a packing note (a Delivery Note) which shows the date of the Order, the Order number and the type and quantity of the Goods;

the Company shall arrange for the delivery of the Goods to the location set out in the Order or such other location as the parties may agree (the Delivery Location) at any time after the Company notifies the Customer that the Goods are ready for delivery;

subject to clause 4.1.6, delivery of the Goods shall be completed at the point in time at which the vehicle containing the Goods' arrives at the Delivery Location;

any dates quoted for the delivery of Goods by the Company to the Delivery Location are approximate only, and the time of delivery is not of the essence. The Customer shall notify the Company in writing as soon as practicable in circumstances where Goods are not delivered to the Delivery Location on the date quoted for delivery of the Goods (or on or before the last date for delivery, where a range of potential delivery dates is provided by or on behalf of the Company);

without prejudice to clause 4.1.4, the Company shall not be liable for any delay in delivery of the Goods or failure to deliver the Goods to the extent caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate and correct delivery instructions or any other instructions relevant to the supply of the Goods;

and the Customer fails to accept delivery of the Goods then, except where such failure is directly caused by the Company's failure to comply with its obligations under the Contract (and without prejudice to the Company’s rights under section 37 of the SOGA 1979):

for the purposes of determining whether the Company is in breach of any of its obligations under the Contract, delivery of the Goods shall be deemed to have been completed at the time at which the Company attempted delivery of the Goods (and all costs and expenses of that deemed delivery and of the return of the Goods to the Company shall be for the account of the Customer);

the Company shall have no further obligation to attempt to deliver the Goods to the Customer;

(without any liability to the Customer) the Company shall have the right to return the Goods to stock after the date of deemed delivery referred to in clause 4.1.6(a); and

subject in any event to the Customer having paid the Company in full (in cleared funds) for the Goods, the Company shall refund to the Customer the price paid in respect of any Goods returned to stock (net of the costs and expenses of the deemed delivery and return referred to in clause 4.1.6(a)); and

the Company may deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any instalment.

If the parties agree that the Customer is to arrange for the collection of the Goods from the Company:

the Company shall ensure that each consignment of the Goods is accompanied by a packing note (a Consignment Note) which shows the date of the Order, the Order number and the type and quantity of the Goods;

the Customer (or the Customer’s agent) shall collect the Goods from the Company's premises at Unit 3, 2-8 Morley Road, Tonbridge, TN9 1RA or such other location as may be advised by the Company to the Customer (the Collection Location) on the Business Day designated by the Company for collection by the Customer (or within three Business Days after the date so designated by the Company in circumstances where the Company fails to notify the Customer of the date for collection at least three Business Days before that date);

subject to clause 4.2.6, delivery of the Goods shall be completed at the time at which the Goods pass over the building’s threshold at the Collection Location;

any dates quoted for the availability of the Goods for collection from the Collection Location are approximate only, and the time of making the Goods available for collection is not of the essence;

without prejudice to clause 4.2.4, the Company shall not be liable for any delay in making the Goods available for collection or failure to make the Goods available for collection to the extent caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate and correct instructions relevant to the supply of the Goods;

and the Customer fails to collect the Goods from the Collection Location on the date or prior to the expiry of the period referred to in clause 4.2.2 (as the case may be) then, except where such failure is directly caused by the Company's failure to comply with its obligations under the Contract:

for the purposes of determining whether the Company is in breach of any of its obligations under the Contract, delivery of the Goods shall be deemed to have been completed at the expiry of the date or upon the expiry of the period referred to in clause 4.2.2 (as the case may be);

the Company shall have no obligation to attempt to deliver the Goods to the Customer;

(without any liability to the Customer) the Company shall have the right to return the Goods to stock after the date of deemed delivery referred to in clause 4.2.6(a); and

subject in any event to the Customer having paid the Company in full (in cleared funds) for the Goods, the Company shall refund to the Customer the price paid in respect of any Goods returned to stock; and

the Company may make the Goods available for collection in instalments. No delay in making an instalment available for collection or defect in an instalment shall entitle the Customer to cancel any instalment.

If the Company fails to deliver the Goods or to make the Goods available for collection, its liability shall be limited to the additional costs and expenses incurred by the Customer (if any) in obtaining replacement goods of similar description and quality in the cheapest market available.

The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 25% less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice.

Quality

Subject to the remaining provisions of this clause 5, the Company warrants that on Delivery or Collection (as the case may be), and (except in the case of Perishable Goods) for a period of 6 months from the date of Delivery or Collection (as the case may be) (the Warranty Period), the Goods shall:

conform in all material respects with their description;

be free from material defects in design, material and workmanship;

be of satisfactory quality (within the meaning of the SOGA 1979); and

be fit for any purpose held out by the Company.

Subject to the remaining provisions of this clause 5, if:

the Customer gives notice in writing to the Company during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 5.1;

the Company is given a reasonable opportunity to examine such Goods; and

the Customer (if asked in writing to do so by the Customer) returns such Goods to the Collection Location at the Company’s cost,

the Company shall, at its option, replace the defective Goods, or refund the amount paid for the defective Goods.

The Company shall not be liable for the failure of Goods to comply with the warranty set out in clause 5.1 in any of the following circumstances:

the Customer is deemed to have accepted the Goods pursuant to section 35 of the SOGA 1979;

the Goods’ failure to comply with the warranty set out in clause 5.1 is trivial or negligible;

the Customer makes any further use of such Goods, or resells such Goods, after giving notice in accordance with clause 5.2;

the defect arises because the Customer (or any agent, representative, worker or employee of the Customer) failed to follow the Company's instructions regarding the storage of the Goods (if any) or best trade practice regarding the same;

the defect arises as a result of wilful damage, carelessness, negligence or the handling of the Goods otherwise than in accordance with the Company’s instructions regarding the handling of the Goods (if any) or best trade practice regarding the same;

the defect arises as a result of a Force Majeure Event which takes place after risk in the Goods has passed to the Customer;

the Customer fails to give notice in writing as soon as practicable following discovery of the Goods’ failure to comply with the warranty set out in clause 5.1; or

(in the case of the warranty set out in clause 5.1.1 only) the Goods differ from their description as a result of changes made to the specification of the Goods by the Company in accordance with clause 3.2.

The Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1 in circumstances where the Customer fails to comply with the terms set out in clause 5.2.

The terms implied by sections 13 to 15 of the SOGA 1979 and all other warranties concerning the nature, description, quality and fitness for purposes of the Goods are, to the fullest extent permitted by law, excluded from the Contract.

These Conditions shall apply to any repaired or replacement Goods supplied by the Company.

Title, risk and returns

Subject to clauses 6.7.4 and 6.9, the risk in the Goods shall pass to the Customer on Delivery or Collection.

Title to the Goods shall not pass to the Customer until the earlier of:

the time at which the Company receives payment in full (in cleared funds) for the Goods, for any other goods that the Company has supplied to the Customer in respect of which payment has become due and of any other sums which are owed by the Customer to the Company (on any account whatsoever); and

the time specified in clause 6.4, in the event that the Customer resells the Goods.

From the date of Delivery or Collection and until title to the Goods has passed to the Customer, the Customer shall:

store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;

maintain the Goods in As New Condition and keep them insured against all risks for their full price;

notify the Company immediately if the Customer or the Goods (as the case may be) become(s) subject to any of the events listed in clause 9.2; and

give the Company such information relating to the Goods as the Company may require from time to time.

Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells or uses the Goods before that time:

it does so as principal and not as the Company’s agent; and

title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.

If before title to the Goods passes to the Customer, the Customer or the Goods (as the case may be) become(s) subject to any of the events listed in clause 9.2 then, without limiting any other right or remedy the Company may have:

the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

the Company may at any time (or may authorise its agents or representatives at any time to):

require the Customer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into another product; and

if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

Amounts received by the Company from the Customer shall be allocated by the Company in satisfaction of amounts which are owed by the Customer to the Company in such order, and in such proportions, as the Company shall decide, acting in its absolute discretion.

In circumstances where the Company has agreed in writing with the Customer that certain Goods (the Sale or Return Stock) are supplied on sale or return terms (which agreement in writing shall be valid provided that it is recorded by the Company on the Delivery Note or the Consignment Note (as the case may be) and on the Order invoice), and that agreement has not been revoked in accordance with clauses 7.7.1(b) or 9.4.11, the following terms shall also apply:

the Customer must give the Company at least five Business Days’ notice of its intention to return Sale or Return Stock to the Company;

the Customer shall not have the right to return any Sale or Return Stock to the Company after the expiry of the period of 90 days which commences on the date of Delivery or Collection of that Sale or Return Stock;

without prejudice to the generality of clause 6.7.2, the Customer shall not have the right to return any Sale or Return Stock which comprises Seasonal Goods to the Company after the end of the January which immediately follows the relevant Season;

(except where the Company agrees otherwise) the Customer shall not have the right to return any Sale or Return Stock to the Company unless that Sale or Return Stock remains in As New Condition immediately following the return of that Sale or Return Stock to the Company;

the Customer shall not have the right to return more than that proportion of Sale or Return Stock which is represented by half of the cost price of the Goods the subject of the most recent Order placed by the Customer for Sale or Return Stock before the point in time at which the Customer seeks to return any Sale or Return Stock. In circumstances where any Order placed by the Customer comprises part Sale or Return Stock and part other Goods, only that part of the Order which comprises Sale or Return Stock shall be taken into account for the purposes of assessing the proportion of Sale or Return Stock which can be returned to the Company pursuant to this clause 6.7.5;

the Customer shall not have the right to return any Sale or Return stock in circumstances where the Customer’s account with the Company is not In Good Standing;

the Company shall charge a 25% re-stocking fee in respect of any Sale or Return Stock which is returned to the Company;

the Customer shall be responsible for the return of Sale or Return Stock to the Company at the Collection Location. The costs of the return of Sale or Return Stock (including the cost of any packaging) shall be for the Customer’s account. Risk in any Sale or Return Stock which is returned to the Company in accordance with this clause 6.7 shall pass to the Company upon acceptance by the Company of the return of that Sale or Return Stock. The signature by the Company of any delivery note or other document upon receipt of any Sale or Return Stock shall not:

constitute (or be deemed to constitute) acceptance by the Company of the return of any Sale or Return Stock which does not comply with the requirements of this clause 6.7; or

have the effect of transferring risk in any Sale or Return Stock which does not comply with the requirements of this clause 6.7 to the Company;

that any Goods are Sale or Return Stock shall not have the effect of delaying the time at which the invoice which relates to those Goods is to be paid. The Customer shall pay any invoice which relates wholly or in part to Sale or Return Stock in full and in cleared funds in pounds Sterling by Direct Debit(or otherwise in accordance with clause 7.6). In any event, the Customer shall pay the invoice on or prior to the date for payment which is stated on the invoice. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence;

in circumstances where a Customer returns Sale or Return Stock to the Company in accordance with the terms of this clause 6.7, the Company shall issue a credit note in respect of that Sale or Return Stock (such credit note adjusted in accordance with the provisions of clause 6.7.7) and shall apply it as soon as practicable in reduction of the amount owed by the Customer to the Company on any account whatsoever as at the date of issue. In circumstances where the Customer does not owe any amount to the Company on any account whatsoever (or owes an amount to the Company which is less than the face value of the credit note), the Customer shall have the right to apply the credit note (or the relevant balance of the face value of the credit note) against the purchase price of other Goods. Any credit note which is issued by the Company (or any unutilised part of the face value of the credit note, where it has been used in part only) will irrevocably lapse if not used on or before the date which falls 6 months after the date of issue;

the value of a credit note issued by the Company shall be determined by reference to the price at which any Sale or Return Stock returned to the Company in accordance with this clause 6.7 was originally sold to the Customer and by reference to the provisions of clause 6.7.7. Any calculation by the Company of the amount of a credit note, or of the reduction in the amount owed by the Customer to the Company as a result of the application of a credit note shall be final and binding on the Customer in the absence of manifest error; and

any credit note applied by the Company in reduction of the amount owed by the Customer to the Company shall be applied in satisfaction of amounts which are owed by the Customer to the Company in such order, and in such proportions, as the Company shall decide, acting in its absolute discretion.

In circumstances where Goods which are not Sale or Return Stock have been supplied to the Customer in accordance with the Contract, the Customer shall have no right to return those Goods (or any of them) to the Company (or to obtain a credit note or refund from the Company in respect of those Goods (or any of them)) unless:

the relevant Goods are not Perishable Goods;

the relevant Goods are in As New Condition immediately following the return of those Goods to the Company; and

the Company provides its written consent (such consent not to be unreasonably withheld or delayed).

In circumstances where the Company agrees that Goods are to be returned by the Customer pursuant to clause 6.8, the Customer shall be responsible for the return of the Goods to the Company at the Collection Location. The costs of the return of the Goods (including the cost of any packaging) shall be for the Customer’s account. Risk in any Goods which are returned to the Company in accordance with this clause 6.9 shall pass to the Company upon acceptance by the Company of the return of those Goods. The signature by the Company of any delivery note or other document upon receipt of any Goods shall not:

constitute (or be deemed to constitute) acceptance by the Company of the return of any Goods which do not comply with the requirements of clause 6.8; or

have the effect of transferring risk in those Goods which do not comply with the requirements of this clause 6.8 to the Company.

The provisions of clauses 6.7.7, 6.7.8 and 6.7.9 shall apply in circumstances where the Customer returns Goods to the Company in accordance with clauses 6.8 and 6.9, mutatis mutandis.

Price and payment

Subject to clauses 7.2, 7.7, 7.9 and 7.11, the price of the Goods shall be the price set out in the written acceptance of the Order referred to in clause 2.4 or, if no price is quoted, the price set out in the Spirits List as at the date of the Order.

The Company may, by giving notice to the Customer at any time up to three Business Days before Delivery or Collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

any factor beyond the Company's control (including Force Majeure Event, foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs);

any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.

The price of the Goods is inclusive of the costs and charges of processing the Order and packaging the Goods, but is exclusive of the costs of delivery and insurance, which will be quoted to the Customer (if applicable). Unless the price of Goods is stated to be an Ex-Duty Price, the price of the Goods is inclusive of United Kingdom excise duty. The price of the Goods is exclusive of any import duties, taxes, levies or imposts chargeable in respect of the Goods by the fiscal or customs authorities of any country other than the United Kingdom.

The price of the Goods is exclusive of amounts chargeable in respect of value added tax (VAT) unless otherwise stated. The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

The Company may invoice the Customer for the Goods on or at any time after written acceptance of the Order.

Unless otherwise agreed in writing by the Company,the Customer shall pay the invoice in full and in cleared funds in pounds Sterling by Direct Debit. In any event, the Customer shall pay the invoice on or prior to the date for payment which is stated on the invoice. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence.

If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (including in circumstances where the due date for that payment has been accelerated in accordance with clause 9.4.10), then (and without prejudice to any other rights or remedies available to the Company):

the Company shall have the right to:

withdraw any discount (whether that discount was given explicitly for prompt payment or otherwise), in which event the Customer shall pay any difference between the discounted price of the Goods and the price set out in the Company's published price list in force as at the date of the Order together with the overdue amount; and

unilaterally revoke any agreement that all or any of the relevant Goods are Sale or Return Stock;

the Customer shall pay interest on the overdue amount at the rate of 10% per annum above HSBC Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and shall be compounded daily. Such interest shall not prejudice any rights which the Company has under the Late Payment of Commercial Debts (Interest) Act 1988. The Customer shall pay the interest together with the overdue amount;

the Company may suspend provision of the Goods under the Contract (or any of them) and any other contract between the Customer and the Company;

(without prejudice to the generality of clause 7.14) the Company shall have the right to withdraw any or all credit terms made available by the Company to the Customer;

the Company shall have the right to recover any costs incurred by the Company in procuring or expediting payment of the amount due (including the fees of debt collection agencies); and

the Company shall have the right to terminate the Contract and any other contract between the Customer and the Company with immediate effect by giving written notice to the Customer; and

that Customer's account shall no longer be In Good Standing.

The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding which is required by law or made in respect of any credit note issued by the Company pursuant to clauses 6.7.7 or 6.10). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

In circumstances where the Company and the Customer have agreed an Ex-Duty Price in respect of any Goods and the Goods are to be dispatched to another country within the European Union, that Ex-Duty Price shall only be available to the Customer in circumstances where the Customer has provided to the Company:

the endorsed copy 3 of the SAAD (or commercial equivalent) with the information in section B ‘Certification of Receipt’ completed accurately by the Customer;

evidence satisfactory to the Company of the payment of applicable excise duty (or any equivalent) in the destination country to the satisfaction of the fiscal authorities in that country (or evidence satisfactory to the Company that excise duty (or any equivalent) is not payable in the destination country); and

such other documentation or evidence as the Company shall request (acting reasonably),

in respect of the relevant Goods, and where the Company is in fact able to make a successful drawback claim in respect of any excise duty which the Company has already paid in respect of those Goods.

In circumstances where the Customer fails to provide the documentation or evidence referred to in clause 7.9 to the Company’s satisfaction or where the Company is unable to make a successful drawback claim in respect of any excise duty which the Company has already paid in respect of those Goods, the Customer shall, in addition to the Ex-Duty Price, pay to the Company the difference between the Ex-Duty Price and the Duty Inclusive Price of the relevant Goods (the Difference). The Difference shall be deemed to have been included in the original invoice issued by the Company in respect of the relevant Goods and shall be payable to the Company on or before the date referred to in clause 7.6. The provisions of this clause 7 which relate to the non-payment (or late payment) of invoices issued by the Company shall apply to the payment of any Difference, mutatis mutandis. If the Company issues an updated invoice which takes the Difference into account, the issuance of that updated difference shall not have the effect of delaying the point in time at which the Difference (or any other amount relating to the relevant Goods) is payable by the Customer.

The Company will not be bound by clerical or arithmetical errors in documents produced by it or in the Spirits List.

All Orders are charged in Pounds Sterling. Whilst approximate prices in other currencies may be displayed in the Order or in the Spirit List, prices shown in currencies other than GBP are for illustrative purposes only and do not constitute an offer to sell any Product at that price in that currency.

The Company reserves the right to change the prices set out in its price list from time to time and without notice to the Customer.

The Company shall have the right to withdraw any or all credit terms made available by the Company to the Customer at any time without notice in the Company’s absolute discretion.

Resale

The Customer shall:

(without prejudice to clause 5.3.4) follow the Company's instructions regarding the storage of the Goods (if any) or best trade practice regarding the same;

(without prejudice to clause 5.3.5) follow the Company's instructions regarding the handling of the Goods (if any) or best trade practice regarding the same;

follow the Company’s instructions regarding the serving of the Goods (if any) or best trade practice regarding the same;

not do anything calculated or likely to harm the Company’s reputation or the reputation of the Goods;

not make any change to the specification, composition, packaging and/or appearance of the Goods (not being a change which is necessary or desirable in connection with the serving by the Customer of the Goods to retail customers of the Customer);

not sell, transfer, assign, dispose of or otherwise part with possession of the Goods for valuable consideration otherwise than to retail customers of the Customer;

observe any use-by date, sell-by date or other time of latest use guidance provided by the Company (whether by printing that date or guidance on the packaging of the Goods or otherwise) in respect of Perishable Goods;

(without prejudice to clause 9.4) comply fully with all applicable law relating to the purchase, storage, use and resale of the Goods by the Customer; and

permit the Company’s representatives access at all reasonable times on at least one Business Day’s notice to the Customer’s premises for the purposes of assessing the Customer’s compliance with the terms of the Contract. The Customer shall have the right to require that the Company’s representatives are accompanied whilst on the Customer’s premises and the Company’s representatives shall comply with all reasonable health and safety instructions which are communicated to them by the Customer.

The Customer shall indemnify the Company (and shall keep the Company indemnified) against all Liabilities suffered or incurred by the Company arising out of or in connection with any breach or breaches by the Customer of the terms of this clause 8.

Termination and suspension

If the Customer becomes subject to any of the events listed in clause 9.2, the Company may (without any liability to the Customer and without limiting any other rights available to the Company) terminate the Contract with immediate effect by giving written notice to the Customer.

For the purposes of clause 9.1, the relevant events are:

the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) in circumstances where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(where the Customer is a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(where the Customer is a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

(where the Customer is a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;

a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;

(where the Customer is an individual) the Customer is the subject of a bankruptcy petition or order;

a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 Business Days;

any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 9.2.1 to 9.2.8 (inclusive);

the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

the Customer's financial position deteriorates to such an extent that in the Company's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

(where the Customer is a company) the Customer is the subject of a Change of Control; and

(where the Customer is an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

Without limiting its other rights or remedies, the Company may (without any liability to the Customer) suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 9.2.1 to clause 9.2.13 (inclusive), or the Company reasonably believes that the Customer is about to become subject to any of them.

Without limiting its other rights or remedies, if the Company considers (acting reasonably) that the Customer:

is in material breach of the Contract;

is in repeated or persistent breach of the Contract in such a manner as to justify the opinion that the Customer’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

is in breach of any credit terms set by the Company and communicated to the Customer;

is failing to account properly for excise duty (or any similar or replacement duty) chargeable in respect of the Goods in the United Kingdom;

is failing to pay any import duties, taxes, levies or imposts properly chargeable in respect of the Goods by the fiscal or customs authorities of any country other than the United Kingdom;

is failing to comply with any requirements imposed on the Customer by the authorities of the United Kingdom in respect of the labelling, sale or recycling of the Goods; or

is failing to comply with any requirements imposed on the Customer by the authorities of any country other than the United Kingdom in respect of the labelling, sale or recycling of the Goods,

the Company may (without any liability to the Customer):terminate the Contract with immediate effect by giving written notice to the Customer;

suspend provision of any Goods under the Contract or any other contract between the Customer and the Company;

accelerate the payment date for any amounts owed by the Customer to the Company (on any account whatsoever);

reduce the amount of credit made available by the Company to the Customer; and/or

unilaterally revoke any agreement that all or any of the relevant Goods are Sale or Return Stock.

Without prejudice to clause 9.4, the Customer shall indemnify the Company (and shall keep the Company indemnified) against all Liabilities suffered or incurred by the Company arising out of or in connection with any failure by the Customer to comply with any requirements imposed on the Customer by the authorities of any country (including the United Kingdom) in respect of the labelling, sale or recycling of the Goods.

On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and any other amounts owed by the Customer to the Company (on any account whatsoever).

Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.

Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

Limitation of liability

Nothing in these Conditions shall limit or exclude the Company's liability for:

death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable);

fraud or fraudulent misrepresentation;

breach of the terms implied by section 12 of the SOGA 1979; or

any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

Subject to clause 10.1:

the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of opportunity, loss of savings, loss of reputation, or any indirect or consequential loss arising under or in connection with the Contract; and

the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1,000,000. The Customer is responsible for making its own arrangements for the insurance of any loss over and above this limit.

Force majeure

Provided it has complied with its obligations in clause 11.2, if the Company is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the Company shall not be in breach of the Contract or otherwise liable for such failure or delay in the performance of its obligations under the Contract. The time for performance of such obligations shall be extended accordingly.

The Company shall:

as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and

use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

If the Force Majeure Event prevents, hinders or delays the Company's performance of its obligations for a continuous period of more than four weeks, the Customer may terminate the Contract by giving written notice to the Company, provided that termination of the Contract pursuant this clause 11.3 shall not affect any of the Customer’s obligations and liabilities that have already accrued as at termination (including any obligation to pay the Company for any Goods that the Company has supplied to the Customer (whether in full or part satisfaction of any Contract) and any other sums which are owed by the Customer to the Company (on any account whatsoever)). The Company shall refund to the Customer the amount already paid by the Customer (if any) towards the price of the Goods which the Company has not supplied to the Customer at the time of termination of the Contract as soon as practicable.

Intellectual property and confidentiality

As between the Company and the Customer, all Intellectual Property Rights embodied within:

the Goods;

any promotional or other supporting materials provided to the Customer by the Company in connection with the Goods or otherwise under or in connection with the Contract; and

the terms of the Contract,

shall belong to the Company.

In circumstances where the Customer becomes aware of any actual, suspected or threatened infringement of any of the Intellectual Property Rights referred to in clause 12.1, or becomes aware of any claim that any of those Intellectual Property Rights infringe the rights of any third party, the Customer shall immediately notify the Company of the fact and circumstances of that infringement. The Company shall have exclusive control over, and conduct of, all claims and proceedings relating to the Intellectual Property Rights referred to in clause 12.1 and the Customer shall (at the Company’s cost) provide such information and assistance as the Company may reasonably require. The Customer shall not make any admissions in respect of such claims or proceedings. As between the Company and the Customer, the Company shall be entitled to retain all sums recovered in any claims and proceedings relating to the Intellectual Property Rights referred to in clause 12.1 for its own account.

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 12.4. No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

Each party may disclose the other party's confidential information:

to those of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

For the purposes of training, security and fraud prevention, the Company may record telephone conversations between representatives of the Company and the Customer and store correspondence between representatives of the Company and the Customer indefinitely.

The Customer agrees that the Company may obtain and retain credit references relating to the Customer from third parties (including credit reference agencies) and that the Company may (without prejudice to its other rights and remedies in circumstances of non-payment) notify credit reference agencies in circumstances of non-payment by the Customer of amounts owed to the Company.

General

Assignment and other dealings

The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.

Notices

Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, sent by registered airmail or other next working day international delivery service, sent by commercial courier or sent by e-mail.

In circumstances where a notice or other communication is given to the Company under or in connection with the Contract by a method other than e-mail, a copy of that notice shall be sent by e-mail to the Company. E-mails to the Company shall be sent to trade@maverickdrinks.com and shall not be deemed received unless they are expressly acknowledged on behalf of the Company or the subject of an automated read receipt.

A notice or other communication shall be deemed to have been received:

if delivered personally, when left at the address referred to in clause 13.2.1;

if sent by pre-paid first class post or other next working day delivery service to and from addresses within the United Kingdom, at 9.00 am on the second Business Day after posting;

if sent by registered airmail or other next working day international delivery service to or from an address outside the United Kingdom, at 9.00 am on the fifth Business Day after posting;

if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or

(subject to clause 13.2.2) if sent by e-mail, one Business Day after transmission.

The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Waiver

A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Third party rights

A person who is not a party to the Contract shall not have any rights to enforce its terms.

Variation

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.

The Company shall have the right to amend these Conditions from time to time. Save as set out below, changes to these Conditions shall be effective from the moment in time at which they are published by the Company. No change to these Conditions shall affect the terms of any Contract which has come into existence pursuant to clause 2 prior to the date of publication of that change.

Governing law and jurisdiction

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

Personal guarantee terms

Words and expressions used but not defined in this guarantee (the Guarantee) shall have the meanings ascribed to them in the trade and wholesale terms of sale set out above. The rules of interpretation which are set out in the trade and wholesale terms of sale set out above shall apply in the Guarantee.

In consideration of the Company offering a trade credit facility to the Customer, the individual who has signed the section of the new account application form which is headed Personal Guarantee (the Guarantor) has agreed to guarantee all present and future payment obligations and liabilities of the Customer to the Company due, owing or incurred in connection with the supply of Goods to the Customer (the Guaranteed Obligations).

The Guarantor guarantees to the Company, whenever the Customer does not pay any of the Guaranteed Obligations when due, to pay on demand the Guaranteed Obligations.

The Guarantor as principal obligor and as a separate and independent obligation and liability from his obligations and liabilities under clause 3 above agrees to indemnify and keep indemnified the Company in full and on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Company arising out of, or in connection with, the Guaranteed Obligations not being recoverable for any reason or any failure of the Customer to perform or discharge any of its obligations or liabilities in respect of the Guaranteed Obligations.

The Guarantee is and shall at all times be a continuing security and shall cover the ultimate balance from time to time owing to the Company by the Customer in respect of the Guaranteed Obligations.

The liability of the Guarantor under the Guarantee shall not be reduced, discharged or otherwise adversely affected by:

any intermediate payment, settlement of account or discharge in whole or in part of the Guaranteed Obligations;

any variation, extension, discharge, compromise, dealing with, exchange or renewal of any right or remedy which the Company may after the date of the guarantee have from or against the Customer;

any grant of time, indulgence, waiver or concession to the Customer;

any insolvency, bankruptcy, liquidation, administration, winding up, incapacity, limitation, disability, the discharge by operation of law, or any change in the constitution, name or style of the Customer;

any invalidity, illegality, unenforceability or frustration of any Guaranteed Obligation; or

any act or omission which would not have discharged or affected the liability of the Guarantor had he been a principal obligor instead of a guarantor.

The Company shall not be obliged before taking steps to enforce any of its rights under the Guarantee to:

obtain any judgment against the Customer;

make or file any claim in a liquidation, administration or insolvency of the Customer; or

make demand, enforce or seek to enforce any claim, right or remedy against the Customer.

The Guarantor holds any rights (to indemnity, counterclaim, subrogation or otherwise) which he has against the Customer in connection with the Guarantor’s liability under the Guarantee, and any monies which the Guarantor receives (or to which he is entitled) in connection with such rights, on trust for the Company, and shall promptly on demand pay over, transfer or assign to the Company any rights or monies which are so held on trust.

The Guarantor shall promptly on demand pay to or reimburse the Company all costs, charges and expenses incurred by the Company in connection with the enforcement of the Guarantee.

Any calculation by the Company of any amount owed to the Company by the Guarantor shall (in the absence of manifest error) be conclusive evidence of the matter to which it relates.

The benefit of the Guarantee is freely transferable by the Company.

The Guarantee, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Guarantee or its subject matter or formation (including non-contractual disputes or claims).

Copyright in these terms belongs exclusively to ATOM Supplies Ltd. All rights (including moral rights) are asserted and reserved.

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